And The War on the Second Amendment Continues

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To the modern layman, “shall not be infringed” seems quite explicit, but that didn’t keep a federal judge in Connecticut from ruling that a law that clearly runs counter to the purpose and intent of the Second Amendment was nonetheless “constitutional.”

Gun control advocates were buoyed Thursday by a federal court decision in Hartford that upholds Connecticut’s toughest-in-the-nation assault weapons ban, calling it a constitutionally valid means of balancing gun rights and the government’s interest in reducing gun violence.

“The court concludes that the legislation is constitutional,” senior U.S. District Judge Alfred V. Covello wrote in a decision published late Thursday. “While the act burdens the plaintiffs’ Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control.”

Judge Covello held that though variants of the AR-15 are “in common use” (which is a matter of fact, not opinion: AR-variants are the most common centerfire rifle sold in the United States), Connecticut’s ownership and sales ban is justified because of the government’s goal of “reducing violence.”

Put in the bluntest possible terms, Covello simply ignored the purpose, context, history, and intent of the Second Amendment in order to use the lesser judicial standard of “intermediate scrutiny,” and based that upon the approach taken by previous courts. He also seeming suggested that almost any gun control law is permissible is long as we arm disarmed for the so-called “public good.”

We have no one to blame for this lesser standard than the Supreme Court of the United States itself, which has effectively and cravenly refused to tell lower courts by which standard challenges to the Second Amendment should be judged, a fact noted by Mehr and Winkler in The Standardless Second Amendment [PDF].

Given that the Supreme Court held that the Second Amendment protected the “fundamental right” to possess arms in defense of the home, some courts have reasoned that strict scrutiny should apply to gun laws.27 These courts usually argue that fundamental rights automatically trigger strict scrutiny. Descriptively, the courts are wrong; in numerous areas of constitutional doctrine the Supreme Court has held that a right is “fundamental” but that some other, lesser standard of review applies.28
Although nearly all of the Bill of Rights has been applied to the states on the grounds that the rights involved were “fundamental,” strict scrutiny is only applied in cases arising under the First and Fifth Amendment in the Bill.29 Strict scrutiny is not applied in cases arising under the Fourth, Sixth, Seventh, Eighth, Ninth, or Tenth Amendments. Even in the First and Fifth Amendments, strict scrutiny is only used selectively, with less demanding standards applied to, among other things, restrictions on commercial speech, content-neutral speech laws, sex discrimination, generally applicable laws burdening the free exercise of religion, and takings of property.

I would argue that a “fundamental right” (of which the right of defense is clearly paramount) deserves nothing less than the standard of strict scrutiny, though as Mehr and Winkler note, the Supreme Court has only rarely kept to that standard. This refusal to adhere to strict scrutiny is without a doubt the reason the federal leviathan has been able to usurp so much power and control over a citizenry that is now inarguable not free.

The Second Amendment, as written, is clear and unambiguous.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

“Well-regulated” means properly armed and trained. The militia is all of the people, as noted under U.S. code, comprised of both the organized militia (the National Guard and Reserves) and the unorganized militia (pretty much everyone else capable of picking up a gun).

There is no specific mention of ” personal self defense” (which is how courts like to try to interpret laws to justify the lesser standard of intermediate scrutiny) in the amendment, but there is a direct and unambiguous statement that this well-armed and well-trained citizenry is “necessary to the security of a free State.” This means that the militia (which is all of us) should be armed to serve in a military capacity, which is how the security of states and nations are secured when diplomacy fails.

There simply is no other rational, contextual way to read the Second Amendment. The Founders wanted us armed with arms sufficient for contemporary combat, as they were.